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HomeMy WebLinkAbout95-01760 -- ~ 3 :l ~ , ~ i ~ I I '3 I I -# € ~ J o ~ r - . , " "" ":> .:.:. .:.:. .:<<. .:c. .:c. .:.:- .:co ... ... .:co .:co .:.> .:.:. .:.:. .:.:. .:.:. .:c. .:.:. .:+:. .:.:..=-".:.~".:c-:;.>>:;.:c-.~:+:-- .:.:- .:.:0 <e:>..'O'" ~I- - . ~ 8 , ~ ; ~ IN THE COURT OF COMMON PLEAS ~ ~ ~ ~ ',' 8 8 w ., e .;, ... .;, " W 0;' ~ w '.' W <;', ," :, OF CUMBERLAND COUNTY STATE OF '* PENNA. .MAR1{J::~...lI()~LL, . '..... .....,P1!l.i.nt.~ff " .. .............. .... q 'I ........_........... :1 ~ ! N (), ?~:,~.?.~9....~IY..~~...!.I);~ VCI'SlIS PATTIE A. HOWELL, . . . . . . . . . . . , " ., ................1 d Defendant .. " w " ,', ~ ~ ',' DECREE IN DIVORCE ~l ',' ~ AND NOW,. ,..... ,.. ,~~,":.. ..(~,~, 19??"." it is ordered and decreed that... .. .. ., .... .. . MAIU<. ~,..I;lOr1.ELL...,.. .........., plaintiff, and........................, .~~~:r:~I;:.~". .l:I9~P:,........,.." defendant, are divorced from the bonds of matrimony. ,', ~ 0;' ~ ~ ..' .. ... i '.' The court retains jurisdiction of the following claims which have been raised of record in this action for which a final order has not yet been entered; " ~ ~ ,', ~ ~ All other claims have been resolved in a Property Settlement and Sepa:tatibii 'Agr'eemenc . di1't'ed' Jurie' 9'; '1997: 'a' 'copy' 'of 'wh'fcl1' 1'8 ' , , , lItt:ac:hed. h~~~.t.Q and. .ir;lcoxporated.. .but:, nQt. m.~l;'ged." .her.aio, b.y.. " , referenc as though fully set forth. ~ ,', ~ M ..' ,'. ~ ~ <:, ," ~ ~ ~ ~ 1': .-; ~ '.:~, , ........ .:.t:. '::'.' .:,to.. . . ~t?:!n.~ K~&,L)-7... ... {/ f)fothonotary I. .._, ~_., ......-- ...~-~--~-..,....~...-..~. ...-..- .. ,-, ~. _....---.---------~-_._------------. ,--.._~ .....,.. ,~ ~**~*---~**--*~*-*-~~~~. ~ " ~ ~ ~ ~ 8 ~ ~ ~ ~ $ ~ (, ~ 8 ~ ~ e ~ ," ~ ~ ~ ,'~ i ~.~ ~ ", M ~, ~ '.' w. ',' ~ ',' w ... ~ ',' ~ '.' ~ ',' !i! ',' ~ ',' ~ '.' ~ '.' , ' "," PROPERTY SETTLEMENT AND SEPARATION AGREpMENT THIS AGREEMENT, made this 't-ot.. day of ~~ 1997, at Carlisle, Cumberland county, Pennsylvania, by and between MARK E. HOWELL of 107 South warwick Trace, Goose Creek, , South Carolina 29445 (hereinafter referenced as "Husband") 'AND PATTIE A. HOWELL of 1054 South pitt Street, Carlisle, Cumberland County, Pennsylvania 17013 (hereinafter referenced as "Wife"). ARTICLE I SEPARATION 1.01 Secaration of Parties. Differences have arisen between the parties as a result of which they have been living separate and apart since January 6, 1995. 1.02 Intention to Live Acart. The parties intend to maintain separate and permanent domiciles and to live apart from each other. It is the intention and purpose of this Agreement to set forth the respective rights and duties of the parties while they continue to live apart from each other and to settle all financial and property rights between them. ARTICLE IT ENFORCEABILITY AND CONSIDERATION 2.01 Eauitable Distribution of Marital Procertv. The parties have attempted to divide their marital property in accordance with the statutory rights of the parties and in a manner which conforms to the criteria set forth in 5401 of the Pennsylvania Divorce Code, and taking into account the following considerations: Any prior marriages of the parties; the age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; the contributions of each party; the opportunity of each party for future acquisition of capital assets and income; the sources of income of each party, including, but not limited to, medical, retirement, insura~ce or other benefits; the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of marital property, including the contribution of each party as homemaker; the value of the property set apart to each party; the standard of living of the parties established during the marriage; and the economic circumstances of each party at the time the division of property is to become effective. The division of existing marital property iS,not intended by the parties to constitute in anyway a sale or exchange of assets, and the division is being effected without the introduction of outside funds or other property not constituting marital property. The division of property under this Agreement shall be in full satisfaction of all rights of equitable distribution of the parties. 2.02 Incorcoration and Merqer. This Agreement shall be incorporated but not merged in the decree of divorce contemplated herein. This Agreement shall survive any action for divorce and decree of divorce and, unless otherwise set forth herein and except as to issues of child support and child custody, shall forever be bindinq and conclusive on the parties; and any -2- , ,... independent action may be brought, either at law or i~ equity, to enforce the terms of this Agreement by either Husband or wife until it shall have been fully satisfied and performed. Any provisions herein concerning property rights, alimony and counsel fees shall not be modifiable. The considerations for this Agreement are the mutual be~efits to be obtained by both of the parties hereto and the covenants and agreements of each of the parties to the other. The adequacy of the consideration for all agreements herein contained is stipulated, confessed and admitted by the parties, and the parties intend to be legally bound hereby. 2.03 Aqreement Predicated on Divorce. It is specifically understood and agreed, by and between the parties hereto and each of the said parties does hereby warrant and represent to the other, that the execution and delivery of this Agreement is predicated upon an agreement for prosecution to conclusion of the pending action for divorce. Nothing contained in this Agreement shall prevent or preclude either of the parties hereto from commencing, instituting or prosecuting any action or actions for divorce, either absolute or otherwise, upon just, legal and proper grounds; nor to prevent either party from defending any such action which has been, mayor shall be instituted by the other party, nor from making any just or proper defense thereto. It is warranted, covenanted and represented by Husband and Wife, each to the other, that this Agreement is lawful and enforceable and this warranty, covenant and representation is made for the -3- .... specific purpose of inducing Husband and Wife to execute the Agreement, Husband and Wife each knowingly and understandingly hereby waive any and all possible claims that this Agreement is, for any reason, illegal or for any reason whatsoever of public pOlicy, unenforceable in whole or in part. Husband and wife do each hereby warrant, covena~t and agree that, in any event, he and she are and shall forever be estopped from asserting any illegality or unenforceability as to all or any part of this Agreement. ARTICLE ill EQUITABLE DMSION OF MARITAL PROPERTY 3.01 Eauitable Division of Real ProDertv. (a) Concurrently with execution of this Agreement, Husband shall execute and have acknowledged a Deed, to be prepared by Wife, conveying all of his right, title and interest in the marital dwelling at 1054 South Pitt street, Carlisle, Cumberland county, Pennsylvania 17013, to Wife free and clear of all liens and encumbrances. Real estate taxes shall not be prorated, and Wife will bear the expense of recording of the Deed. The Deed shall be held in escrow by Wayne F. Shade, Esquire, until issuance of the Decree in Divorce at which time it shall be delivered to counsel for Wife without any additional escrow contingencies; (b) concurrently with execution of this Agreement, Husband shall execute and have acknowledged a Deed, to be prepared by Husband, conveying, to Wife free and clear of all liens and -4- ~ encumbrances, all of his right, title and interest in the non- marital 10.38 acre lot in North Middleton Township, Cumberland County, Pennsylvania, as more particularly bounded and described in the Proposed Subdivision Plan of Fisher, Mowery, Rosendale and Associates, Inc. for Mark E. Howell dated April 11, 1997, Real estate taxes shall not be prprated, and Wife will bear the expense of recording of the Deed. The parties agree that said lot has a current fair market value of at least $275,00n. Husband shall take all reasonable steps to obtain subdivision approval of said lot. The Deed shall be held in escrow by Wayne F. Shade, Esquire, until issuance of the Decree in Divorce and the issuance of subdivision approval at which time it shall be delivered to counsel for Wife without any additional escrow contingencies. Husband shall make all reasonable and diligent efforts to market the said 10.38 acre lot in connection with the remaining lands of Husband of which it is a part. If, at anytime, before the year 2010, Husband has a purchaser who wants to purchase this lot in conjunction with any portion of the property retained by Husband of which this lot was a part, Wife will sell this lot to the purchaser so long as Wife receives at least as much per acre as Grantor receives and so long as that price is at least $26,500 per acre. Husband would not be required to sell his remaining acreage for less than $26,500 per acre. However, Wife would be required to cooperate in the sale to third parties even if the price for Husband's retained acreage were less than $26,500 per acre if Husband would make up the -5- difference to Wife so that she would receive at least $26,500 per acre. The Deed shall contain the following restriction: SUBJECT NEVERTHELESS to the restriction that, prior to the year 2010, Grantee will not transfer any interest in this property which would interfere with Grantee's ability to make an unencumbered sale of the property in conjunction with any portion of the property retained by Grantor of which this l~t was a part. (c) All other real estate in which the parties have an interest shall become the property of Husband. 3.02 Eauitable Division of Personal PrODertv. (a) The furniture, household goods and other similar untitled personal property have been divided to the mutual satisfaction of the parties hereto, and each of the parties retains absolute ownership of such items in his or her possession or control at the date of this Agreement. The property shall be deemed to be in the possession or under the control of either party if, in the case of tangible personal property, the item is physically in the possession or control of the party at the time of the signing of this Agreement an~, in the case of intangible personal property, if any physical or written evidence of ownership, such as passbook, checkbook, policy or certificate of insurance or other similar writing is in the possession or control of the party, unless provided otherwise in this Agreement; (b) Concurrently with execution of this Agreement, Husband shall deposit with counsel for Husband the sum of One Hundred Ten Thousand and NO/100 ($110,000.00) Dollars. Upon issuance of a -6- '" ~ full and final Decree in Divorce divorcing the partie~ from the bonds of matrimony, said funds shall be delivered to counsel for Wife without any additional escrow contingencies; (c) The parties will execute and deliver any documents necessary to formally release their rights in or claims to the employee benefits, including,without limitation, employee pension, stock, profit sharing and savings plans, if any, of the other; and (d) The parties will execute and deliver any documents necessary to formally release their rights and all claims to the life insurance of the other. ARTICLE IV DEBTS OF PARTIES 4.01 post-SeDaration Obliaations. Each party represents to the other that there are no outstanding joint obligations of the parties and that since the separation neither party has contracted for any debts for which the other will be responsible. Each party indemnifies and holds harmless the other for all obligations separately incurred or assumed under this Article IV. ARTICLE V CHILDREN 5.01 CUstodY. The parties shall share joint legal custody of the children. Wife shall have primary physical custody of the children subject to reasonable rights of partial physical custody in Husband as the parties may from to time agree. When Husband has custody of the children, he shall be responsible for any -7- .. expenses of their transportation to and from Carlisle, Pennsylvania. 5.02 Suooort, Husband will pay to Wife child support in the amount of One Thousand Three Hundred and NO/100 ($1,300.00) Dollars per month. When Jennifer reaches the age of eighteen (18) years, child support sh~ll be reduced to six Hundred Fifty and NO/100 ($650.00) Dollars per month unless Jennifer is commuting to college. If Jennifer is living at home ana commuting to college, child support shall continue to be payable for her at the rate of six Hundred Fifty and No/100 ($650.00) Dollars per month, in lieu of the room and board elements of Husband's college expense obligation, for so long as Husband shall be obligated under the terms of this Agreement to pay college expenses for Jennifer. Child support will terminate when Julie reaches the age of eighteen (18) years unless she is living at home and commuting to college. If Julie is living at home and commuting to college, child support shall continue to be payable for her at the rate of Six Hundred Fifty and NO/100 ($650.00) Dollars per month, in lieu of the room and board elements of Husband's college expense obligation, for so long as Husband shall be obligated under the terms of this Agreement to pay college expenses for Julie. The parties will remain entitled to review of child support for all other materially changed circumstances. 5.03 Education. Husband will pay toward the undergraduate college expenses of the children the amount that would be -8- necessary for them to matriculate at Shippensburg Uni~ersity, Such expenses will include tuition, board and room in a dormitory of the college, books and the usual activity fees. Any other expenses for clothing, spending money, automobiles or any other extras will not be Husband's responsibility unless he should volunteer to pay them. The children would not be required to attend Shippensburg University, but the expenses at Shippensburg University would establish the maximum which Husband would be required to pay at any other institution which they would prefer to attend. This obligation extends only for four years from the respective dates that the children are graduated from high school, unless illness or accident prevents them from completing their college within that time; in such case, any period of disability resulting from accident or injury would be excepted from the four years. If either of the children would choose to live with Wife and commute to college, Husband's child support obligation would continue so long as the children are attending college and his college support obligation would remain in effect as set forth above. 5.04 Health Insurance. Wife shall provide health insurance coverage for the children of the parties and shall be fully responsible for any uninsured medical expenses of less than One Thousand and NO/100 ($1,000.00) Dollars per child per year. -9- ,- ARTICLE VI ALIMONY 6.01 Absolute Waiver. Each of the parties waives alimony generally. ARTICLE vn COUNSEL FEES 7.01 Present Fees. In the event of 'amicable settlement of all marital issues and the entry of a Decree in Divorce,pursuant to mutual consent within sixty (60) days from the date of this Agreement, each of the parties hereto assumes his and her own counsel fees up to and including the date of the Decree in Divorce. 7.02 Counsel Fees After Divorce. The parties agree with respect to counsel fees incurred after the divorce, as follows: (a) In the event that future legal proceedings of any nature may be necessary for the interpretation or enforcement of this Agreement or any valid modifications hereof, the prevailing party shall be entitled to reasonable counsel fees incurred. (b) In any future legal proceedings for modification of child support, the prevailing party shall be entitled to reasonable counsel fees. (c) Reasonable counsel fees hereunder shall be defined as reasonable hours expended at the then hourly rate of counsel for the prevailing party. -10- " (d) Such counsel fees shall extend to any indep~ndent proceedings necessary to collect counsel fees or to enforce any other judgment or decree in connection with this Agreement. ARTICLE VIII GENERAL PROVISIONS 8.01 Income Tax consea~ences. The parties have heretofore filed joint federal and state income tax returns. It is agreed that the parties will file joint income tax returns for' 1996 if the result would be less tax than the combined tax on both parties if they were to file separately. In the event that the parties should file jointly for 1996, Wife shall be entitled to the same refund to which she would have been entitled if she had filed separately, and Husband shall be required to pay to her any refund which she would have received had she filed separately. Both parties agree that in the event any deficiency in federal, state or local income tax is proposed, or any assessment of any such tax is made against either of them, each will indemnify and hold harmless the other from and against any loss or liability for any such tax deficiency or assessment and any interest, penalty and expense incurred in connection therewith. Such tax, interest, penalty or expense shall be paid solely and entirely by the individual who is finally determined to be responsible for the deficiency or assessment, Except as otherwise set forth herein, any income tax incidents of any kind imposed by virtue of any transfers of assets or other payments required under 'this Agreement will be the responsibility of the transferee. -11- ~ 8,02 General Release of All Claims, Each party ,hereto releases the other from all claims, liabilities, debts, obligations, actions and causes of action of every kind that have been incurred relating to or arising from the marriage between the parties. However, neither party is relieved or discharged from any obligation under th~s Agreement or any other instrument or document executed pursuant to this Agreement. 8.03 Subseauent Divorce. Nothing herein containeQ will be deemed to prevent either of the parties from maintaining a suit for absolute divorce against the other in any jurisdiction based upon any past or future conduct of the other, nor to bar the other from defending any such suit. In the event any such action is instituted or concluded, the parties will be bound by all of the terms of this Agreement. 8.04 Waiver of Estate Claim. Except as otherwise herein provided, in the event of the death of either party hereto, each party hereby waives, releases and relinquishes any and all rights that he or she may have or may hereafter acquire as the other parties' spouse under the present or future laws of any jurisdiction, as follows: (a) to elect to take against the will or codicils of the other party now or hereafter enforced; (b) to share in the other parties' estate in cases of intestacy; (c) to act as executor or administrator of the other parties' estate; and -12- (d) the right to alimony, support, alimony pend~nte lite, attorney's fees and equitable distribution. 8.05 No Debts and Indemnification, Each party represents and warrants to the other that he or she will not incur any debt, obligation or other liability, other than those already described in this Agreement, on which ~he party is or may be liable. Each party covenants and agrees that if any claim, action or proceeding is hereafter initiated seeking to hold the other party liable for any other debt, obligation, liability, act or omission of such party or for any obligation assumed by a party hereunder, the party liable will, at his or her sole expense, defend the other against any claim or demand, whether or not well-founded, and that he or she will indemnify and hold harmless the other party in respect to all damages resulting therefrom. 8.06 Full Disclosure. Each party asserts that he or she has made a full and complete disclosure of all of the real and personal property of whatsoever nature and wheresoever located belonging in anyway to each of them, of all sources and amounts of income received or receivable by each party, and of every other fact relating in anyway to the subject matter of this Agreement. These disclosures are part of the considerations made by each party for entering into this Agreement. 8.07 Riqht to Live Senaratelv and Free from Interference. Each party will live separately and apart from the other at any place or places that he or she may select. Neither party will molest, harass, annoy, injure, threaten or interfere with the -13- , other party in any manner whatsoever, Each party may ,carry on and engage in any employment, profession, business or other activity as he or she may deem advisable for his or her sole use and benefit. Neither party will interfere with the use, ownership, enjoyment or disposition of any property now owned or hereafter acquired by the otper. 8.08 Aareement Voluntarv and Clearlv Understood. Each party to this Agreement acknowledges and declares that he or she, respectively: (a) Is fully and completely informed as to the facts relating to the subject matter of this Agreement and as to the rights and liabilities of both parties; (b) Enters into this Agreement voluntarily after receiving the advice of independent counselor, having had the opportunity to do so, having decided not to do so; (c) Has given careful and mature thought to the making of this Agreement; (d) Has carefully read each provision of this Agreement; and (e) Fully and completely understands each provision of this Agreement, both as to the subject matter and legal effect. 8.09 Comcliance. The parties will execute and deliver any documents necessary to formally conclude any of their obligations under the terms of this Agreement to each other. 8.10 Default. If either party fails in the due performance of any of his or her material obligations hereunder, the party -14- not in default will have the right to act against the ,other, at his or her election, to sue for damages for breach hereof, or to rescind this Agreement or seek such other legal remedies as may be available to either party. Nothing herein shall be construed to restrict or impair either party in the exercise of this election. 8.11 Amendment or Modification, This Agreement may be amended or modified only by a written instrument signed' by both parties. 8.12 Successors and Assiqns. In the event of the death of either party prior to the issuance of a Decree in Divorce, this Agreement shall be null and void. Except as otherwise expressly provided herein, this Agreement will be binding on and inure to the benefit of the respective legatees, devisees, heirs, executors, administrators, assigns and successors in interest of the parties. 8.13 Law Governinq Aqreement. This Agreement will be governed by and will be construed in accordance with the laws of the Commonwealth of Pennsylvania in effect at the date of execution hereof. 8.14 Condition Subsequent. This Agreement is expressly contingent upon issuance of a Decree in Divorce within sixty (60) days from the date hereof. In the absence of such a Decree, this Agreement shall become null and void. IN WITNESS WHEREOF, the parties hereto have hereunto set -15- their hands and seals, intending to be legally bound hereby, the day and year first above written, signed, Sealed and Delivered in the Presence of: d.#~t < (SEAL) (SEAL) -16- . MARK E, HOWELL, .. IN THE COURT OF COMMON PLEAS OF .. .. CUMBERLAND COUNTY, PENNSYLVANIA .. Plaintiff .. .. .. .. vs, .. CIVIL ACTION -- DIVORCE .. .. .. PATTIE A, HOWELL, .. NO, 95-1760 CIVIL TERM .. .. .. Defendant .. IN DIVORCE .. ORDER OF COURT AND NOW, the L( Day of ) 1,,Jv\.!J.-. , , 1996, upon consideration of the within Petition for Special Relief, a Rule is hereby granted upon Mark E, Howell, Respondent, to show cause, ifany he may have, why the increase in value ofassets added to the June and December Trusts created by Paul W, Snyder and Marie M, Snyder respectively, should not be considered as marital property as of he dale said assets wer\:j\dd.ed to jh;:. t.fl!s~s, . A..._ ~> ~ ./Jk,H;V,c.-Il., Y''f''n~ , said~le is returnable a _S~Ioe~~the ~ay:t.,:;.:ic ~" l\-tCM ~~ VJ_.;CI,lm~Cff"n~'rth.~ rnSYIV~~ ~ ~ ~ of ~ I, h'1"'-J.e-. W~I for the Petitioner shall serve this Rule and the attached Petition upon Wayne F, Shade, Esquire, attorney for Respondent, and file a certificate of service with the Prothonotary. J. ~_~:">':'f_r', ',:~'~ ~ ;.l. . ( " ,,(1 ., '-.' -~. ...... ..,.;,'\ . I " .,(..'....'{..: L:, ,.t -...-..,-- MARK E. HOWELL, .. IN THE COURT OF COMMON PLEAS OF .. .. CUMBERLAND COUNTY, PENNSYLVANIA .. Plaintiff .. .. .. .. vs, .. CIVIL ACTION -- DIVORCE .. .. .. P A TIlE A, HOWELL, .. NO, 95-1760 CIVIL TERM .. .. .. Defendant .. IN DIVORCE .. DEFENDANT'S PETITION FOR SPECIAL RELIEF Pattie A, Howell, defendant in the above-captioned matter, by her attorneys, Flower, Morgenthal, Flower & Lindsay, files the following motion for Special Relief: I. Petitioner, Pattie A, Howell, by this Petition for Special Relief, seeks Equitable Distribution of the increase in value of certain real property during the time said property was held in two trusts for the benefit of Mark A, Howell, Respondent herein, as well as during the time said real property was held by Respondent in his own name prior to the date of separation, following its transfer from the trusts to him, 2, Respondent, plaintiff in the divorce action, through his attorney Wayne F, Shade, Esquire, has taken the position that until said real property was actually distributed by the trusts and deeded into Respondent's name in 1993, any increase in value of the trust principal was not marital property, relying upon the rule in SO/On/Oil 1'. SO/On/Oil, 531 Pa, 113, 611 A,2d 686 (1992), on the basis that Respondent had no ownership or control over property held in the trusts, 3, Petitioner believes that SO/Oil/Oil can be distinguished by a number of differences between the trust in that case and the two trusts involved in the instant divorce, but unless and until this matter can be resolved, determining the amount of asselS available for equitable distribution is impossible, If the determination must await full litigation of the case, the opportunity to resolve the issue by negotiation will be lost, Petitioner further believes that this issue is a significant one not only for the pending divorce, but also for other divorces which may come before the court, and clarification of the mailer will serve the public interest, 4, The relevant facts are the following: A, On June 8, 1978, a trust was established by an agreement in which Paul W, Snyder, Respondent's maternal grandfather, was named as both "Settlor" and "Trustee," A copy of said trust agreement (hereinafter the "June Trust") is attached hereto as Exhibit A. Said agreement provided, inter alia, that at the end of fifteen (I S) years, the trust would terminate and the principal would be distributed to the beneficiaries, including Respondent, However, Section Ten of said trust agreement contained inter alia the following provision: Notwithstanding any of the foregoing dispositive provisions, the Trustee shall, within seven day from receipt of any and all property, notifY the income beneficiary or beneficiaries of the details of such property received; whereupon. the income beneficiary or beneficiaries shall have the unrestricted right for a period of six weeks from the date of notification to demand in writing and immediately receive such property from the trust. (Emphasis added,) B, At some point after the execution of said trust agreement, Paul W. Snyder died, and his daughter Donna M, Howell, Respondent's mother, 2 . became successor trustee pursuant to Section Eight of the agreement, In such capacity, Donna M, Howell received conveyances of real estate for said trust by a deed from Marie M, Snyder (Respondent's maternal grandmother) dated January 4, 1982, as more particularly recited in a deed from Donna M, Howell, Trustee, dated January 31, 1994, distributing said real estate to Respondent and his brothers, said deed being attached hereto liS Exhibit B, C, Petitioner believes, and therefore avers, that prior to becoming successor trustee, Donna M, Howell had disclaimed or renounced her right to the trust's income in favor of Respondent and his brothers; and further, that upon becoming successor trustee of said trust, Donna M, Howell gave notice to Respondent and his brothers of their right to demand their shares of said real estate immediately as set forth in Section Ten of the agreement, but none of them exercised that right, D. On December 28, 1978, a trust was established by an agreement in which Marie M, Snyder, Respondent's maternal grandmother, was named as "Settlor" and Donna M, Howell, Respondent's mother, was designated as "Trustee," Said trust was established for the benefit of Respondent, A copy of sllid trust agreement (hereinafter the "December Trust") is attached hereto as Exhibit C, Said agreement provided, inter alia. that at the end of fifteen ( 15) years, the trust would terminate and the principal would be distributed to the beneficiaries, including Respondent. However, Section Ten of said trust agreement contained inter alia the following provision: Notwithstanding any of the foregoing dispositive provisions, 3 the Trustee shall, within seven day from receipt of any and all property, notii}' the income beneficiary or beneficiaries of the description and details of such property received; whereupon. the income beneficiary or beneficiaries shall have the unrestricted non-cumulative right for a period of six weeks from the date of notitication to demand in writing and immediately receive such property up to the amount of Five Thousand Dollars ($5.000,00) oer vear from the trust, (Emphasis added,) . E, At some point after the execution of said trust agreement, Donna M, Howell received conveyances of real estate for said trust by a deed from Marie M, Snyder (Respondent's maternal grandmother) at various times, as more particularly recited in a deed from Donna M, Howell, Trustee, dated December 31, 1993, distributing said real estate to Respondent, said deed being attached hereto as Exhibit 0, Petitioner believes, and therefore avers, that as trustee of said trust, Donna M, Howell gave notice to Respondent of his right to demand the amount of Five Thousand Dollars ($5,000,00) per year from the trust as set forth in Section Ten of the agreement, but he did not exercise that right. 5, At the time that property was received by these trusts, Respondent had the right to immediate possession of at least a portion thereof, and even though he did not exercise said right, he had constructive possession of the property, Petitioner believes that this constructive possession converted said trust property to marital property at such time, and that she is entitled to equitable distribution of the increase in value of the same which occurred prior to the date of separation, 4 , 6, Petitioner does not know at the present time. ifall of the property, real and personal. which was added to said trusts has been identified despite some discovery which has taken place; but for the purposes of the relief sought by this Petition, that information is not essential and can be developed later through further discovery and at the Master's Hearing, WHEREFORE, Petitioner prays that your Honorable Court to grant a Rule upon Respondent to show cause, if any he may have, why the increase in value of assets added to the June and December Trusts as described herein should not be considered as marital property as of the date said assets were added to the trusts, Respectfully submitted, ~~~ Roger M, Morgenthal, Esquire FLOWER, MORGENTHAL, FLOWER & LINDSAY, Attorneys for Petitioner/Defendant Attorney No, 17143 II East High Street Carlisle. Pennsylvania 17013.3016 Telephone: (717) 243-5513 5 (S@[Pty TRUST AGREEllENT TRUST ACREEHEHT made June 8 1918. between PAUL W. SNYDER of the Borough of Carllsle, Cumberland County, pennayl- vanla, hereinafter referred to a. "Settlor". and PAUL W. SnYDER of the Borough of CarlisI., Cumberland County, Pennsylvanla. hereinafter referred to .1 "Trustee". In consideration of the mutual covenant a and promises let forth hereln. Settlor and Trustee aSree: Section One Transrer in Trust Settlor herewith ...tsn., tran,fera. and convey. to Trustee the property described 1n Exhibit "A", attached hereto and made n pArt hereof by lhh reference, receipt or such rropt'rty is hereby Acknowledged by Trustee. Such property. hereafter desig- nated the truat estate, Ihall be held by Trustee in trullt for the Ullel and purpoles and on the terml and conditions set forth herein. , 1\'''> .\ Section Two DilPosition of Princioal and Income Tru.te. .hall administer and manage the tru.t e.tate, collect the income th.refrom. and, aft.r payment of all taxe. and a.....ment. th.r.on and all expen.el and char g.. incident to the management thereof. apply and di.po.e of the net Income and the principal of the tru.t eltate aa follows: 1. The net income shall be distributed annually to my daughter. DONNA fl. nOWELL. However, if IIhe dhclaima or renounce her 1'1r,ht to receive snid income In wrttlnr. which IIhall be attached hereto, thcn said income shall be dhtrlbuted annually to my grandaona, JAlIES p, 1I0WEl,L, HARK E, 1I0llELL and RICIIAnD K, nOWELL. At the expiration of fifteen (15) yann Crom tho tlote of the execution of thi. Agreement, this trullt shall te~indte and the princlpal of said trust shall be distributed equally to the beneflel.rie. hereunder. '""'....'". ...~r.,...I_...c. I .1. I'll · cXHla,-r n income aenerated froa the tru.t e.tate, nor may the Tru.t.., in hi. per.onal b.half. or the Sattlor directly or indir.ctly ben.fit from the u.e. po.....lon or enjoyment of the lncome and/or principal of the tru.t e.tat.. Th. beneficiari.. hereln are the only p.rlon. who may b.nefit from the U'., po.....ion or .njoyment of the income and/or principal of the trust. Section Seven CODlPen..tion of Tru.t.. Paul W. Snyd.r hereby wlive. all fe.s for .ervice. .. Tru.t.. h.reunder. However. all lucce..or trulte.. .hall b. entitled to reasonable compenlation for their .ervlce.. Section EIRht Succel.or Tru.tee. u....f'Cn .l.._'........-..._c, If Paul W. Snyder re.lsn. or II unable to continue to act a. Tru.t... Donna H. Howell .hall b. appolnt.d .. the aucce..or true tee. The IUCCe..or tru.te. Ihall succeed OJ truat.e with llke effect aa though orisinally named a. luch herein, and all authority and powera conferr.d on Trulte. hereunder Ihall pa.a to the lucc...or trustee. S.ctlon Nlne Accountina Truat.. at any tlme ahall b. entitl.d to r.nder to the current income ben.ficiary or beneficiariee of the trult eltate an account of the act. of Tru.te. and tran.action. with r..pect to the income and princlpal DE the trust e.tate from the date of the cre.tlon of the trult or from the date of the laat prevloul account of Trultee, and such beneficiary or bene- flcla~1 ahall have full power and authority on behalf of nil peraon. now or hereafter lntereated in the truat to finally lettl. and adjult .uch account. Approval of auch account by Iuch beneficiary or beneficlariel ahall conatitute a full and -4- AND ihe said Grantor hereby to'f'enanl' and 'areellhal she will warrant specially lhe propc:ny hereby tonvcyed. IN WITNESS WIIEIlEOf. Mid 0nnI", hu hI..un'n ... hot hand .... ...I'ha d.y.nd yoar fust aha.... wriuen. SIGNED, SEALED AND DELIVERI!O m~c::- ~ /.J? ~ (SEAL) Do M. Howell. u TIUJln for Mark B. 1I0wdl, I..... P. 1I0woll.nd !\iehard K, Howell. under Trult Aareemcnt dated June 1,1971 COMMONWEAL TII Of fENNSYL VANIA COUNTYOf ~ ) ):u, ) On 'hi.. ,hi 2C.' d.y of 'f111LuJ-, 1995, before me. .he und"~l"ed offieor, personally oppeoted DONNA M.1I0WELL. u TN"" for Muk E. 1I0woll, 1...0. P. Howdllnd !\iehard K, Howell. under TNlt Aarccmenl dated June I. 1971. known to m. (or satlalKlorily proven) to be the penon whose name it aubteribed to the within lnItJument. and adutowledacd thatlhe cxecuted the same for the purpoKl therdn contained. -... lWML.___ "U~"tIc """C;;.~.~=~~~ (SEAL) >lPonn_nll } sa ~~ 'd ~umbertand -, '. '!Inthllotflc:eforthlrecordlngof"Gt':l ..'.....r-- l""'\A.I ldl"'.GH_'ndCounlY.~.. 't.,W'l. no'3k ~ Vol. = '-01 Lll.L. Attorney for Grantee ,myh~~ ()L- '11~.PAthll ..".dIV ' ~ . .. --I lR " i:l '. '. r~ , Co ; . 5: :; ~:. '. c .. .. - .- .., :, co ~'" .z: ~ " ~,;i . "' &D .- .. '1101 IN UITNISS WHEREOF, Settlor and Trultee have executed thi. aBreement on the day and year firlt above written. . .. ~'R Marl . "~ .:, ~t" 5ny or, 5et Dr A. .~ ' ": '"" A. ".,"/l DOnna H. lI~el f TrU8 te. -6- r_M4' ~.. w~~.6 rkh6 +k&tiA "_/;1<1 , !1-& I / 1'J,...~~-, MADB nIB .31~1 nlnety,UII.. (1993), IQ,w 'Zq.l1l-<:68I-00 mlS DEED day or ~tm bU' In the year or our Lord ono thousand nino hundrod BB'IWBBN DONNA M. IIOwmJ... u Trultcc ror Mlrk B. Howell, under I TNJI AIRemenl dated Doccmber 28, 1978. herelnafler rererm! '0 u: Oranlor. and MARK B. HOWBLL. married man, or Carll.le. Cumberland Counly, Pt:nn.ylyanla. hereinafter reremd 10 U: Omnec. W1TNIlSSIlI1I.lhallncon.ldentlon or ONB AND 001100($1.00) Dollar In hand paid, tho ~pl ..hereor II hereby _Iodpl, the AId allnlOr docs hereby."'" .nd convey 10 tho AId a....... h1a heln and wi...: ALL 1lIAT CERTAIN .ract or land .11UIlO In NOM MlddIeIOn Town.hlp. Cumbcrland Coun.y, PennaylYanla. bounded and doIcrtbed u ronows: BOOlNNINa .1 . polnl. In tho CClIler Uno of Intenec:tlon of PI, Roul. 641 and T. No, 706; Ihoace by the center Uno ofT, No, 106, NoM 6 de..... W... 32,8 perches (541.20 r...) 10 . poln.llland. ..,.. or ronnerly or Jam.. p, HoweU; lhence by tho ...... North 81 dq.... But 132,6 perches (2181,90 rcel) 10 . point: Ihoace by JandJ ..,.. or roonerly or Mervin Uppert and crouln. over. PI, Roo.. 641 Souu. 26-3/4 dq....1!uI1220 r..., more or 1....10. poln.ln.he northom rt.hl...r....y line or....n Cenllll RaIlroad; lhence by AId rl.ht...r,...y line In . ..-.ly dlrectlon 1900 r..., more or I..., 10. polnlln tho.....r line or L. R. 21056, PI. Roo.. 465; Ihoace by .he cenler Uno or AId road North 12 de..... W... 304 r... 10 a poln.ln tho CClIler Uno or tho Inlenectlon or L, R. 21056 and PI, Roo.. No, 641: lhence by lhe cenler Uno or PI, Roole No, 641 NoM 83 de..... West 6$,3 r....o. point; !henc. by lhe ..... NoM 82 de.ree. West 100 r... 10 a point; Ihoace by tho ..... North 78 dq.... West 300 r... '0 a point: Ihoace by tho...... Nortb 83.112 dq.... West 206,25 r...lOa poln.1n tho center line or the lotenectJon or PI. Roo.. 641 and Towlllblp No, 706, tho point and placo or BOOlNNINa. aBINa tho..... prem.... wblch Mali. M. Snyder by _ dalCd December 28. 1918, January 2,1919, January 16, 1980, July 9,1981 and April I, 1981, and recorded In tho 0fIIce or.he Recorder or DeedJ In and ror Cumber1and County In Deed Book 'p., Volum. 28. PI.. 535: Deed Book 'p'. Volume 28. PI.. ,oo~ 119 l.\'f10!l3 V..HI(.~ ok' IF', 12..-u-74' I. -:1/-'9 '~ir~1S EXIi/8rT' "DO 714; Deed Book -K-, Volumo 29. Pap 272i Deed Book .M., Volumo 29, PalO 218 IIld Deed Book 'M', Volume 29, Pile 367, respe<tlvely, IlOnled .nd conveyed unto DonlII M, Howell, /u TN_ under . TnIIl AlRem..t dated December 18, 1978, OIUllO' heteln, AND the IIid OIUllO' hereby cov....1I11ld .1.... Ihal .he ...111 ....mn. .peclally the propeny hereby conveyed, IN Wl'INBSS WHEREOF, uld Granlor hu hereunlo ad her hand and allhc day .nd year lInl above wriltCll, SIONED, SBALSD AND DSUVIlIII!D IN~~~ ~ 2P (t~ <~ (SHALl ~M, Howell, T~ COMMONWllAL11l OP PBNNSYLVANIA ) ):U, COUNlY OP CUMBIlRUNIl ) On 1hIa, the lI-nI day 01 'I1al..cfl\.. , 199~ beloll me, the undenllned om<<" penonaUy appwed DonlII M, IIowdl, U T~ lor R1cbud K, How.D, unde, . TN" AI.......I dated December 28, 1978, Io1own to me (or utlaflClOrily proven) to be the penon w_ .....1. sublcrtbed to the wllh1n~, IIIlIIdolowIedied Ihal sbe .....ted the woe ror the P"POIII therein coatalned, IN WITNBSS WHEREOP, I.......nto set my ~ ~w 11I1, . W;m ~ II,~~ . ".. ~~' .1 0 ,"- ~' - (SI!AL) ..... "'" T.....L...... ..,N1C C'ln-1Do r......-cl Ccutt ,~c..m.....~'*'" 2'4. 1m lOll! ti9 uCli094 I_y cenJfy lIIII tJwo,~...1te rIf\d,plc:e IlId <ll'!'plcle _ office add.... of.he within 0......11 1054 ~ roll: 6\t1J.t,CDJli:.lt, fA '"lOf:!. ~~ AItome)' for 0...100 COMMONWIIALllI OP PENNSYLVANIA ) COUNTY O~ \l h\\:nll.~ I' II, RBCORDBD oalhla Cl~ day 0' I1Illl1:n A. D, I~ In tho Reconler'. omce ofthouldCOIIDly In Deed Bookl'/ll . Volume - . Pqe\l.l~' 01... under my hand IlId tho lOll 0' tho u1d olllce, the dalo .bove written, ~~~~ Rocorder "tt';' I": ~.. . .~~'.l~'l'I.*':'j ,,);,.,...:...' '-, ~'lYi::t.;~", ~ ." ...... ~~.:~.1".~ti'1. . '1'- (1-'__ --...... 'f'~1 . ~',<'tll't'.'. "'''';,.' 1\,'.1. ',11 ...... ".,\...' r,,""r. ;"~"\t t~~~.~,,{, !:,~'~o.>.:%t~~J"~~" "t...l:;'p~~l~', '..r.-}~~/",(.,~ ~~:!\l':<:~, u; c.n ., a,;' , . u " ' :c ' . . :::0 .... Q .... CD 0" .. ..'!I" .- ... ,,, "~ .~~: .; allCll 119 'lul095 * ~OII"""'_ _W_ -................ ---=. t:-~ s.. ....... .. u. .. c...-..... ___....... -..-.. ___.. D..-.....I".... .. . II - _........~ (ZI........ .. ....... _......... .,..,... ... Ill........... II ~ It...... II VI'- II _.......,....... II....,........... ~ __ I') .....,........ ., fZI ,......., -. If............... ........... ....... W. ..I'I'I~'U.I~"I."I"'l'I_III"""'''_II...._IftII'I~III1.r._...~_ - ==- lva V. Otto, Ill, r..quire __CMlI 117 124]-]].1 ........... ... ~w. 10 EAst High Street PA .1 . '~'''''''''UI'.n.1fl .. " ..~.Danna H. HcJw.ll, TruIIt.e for Mark ..I.U4W(' J !,1M UNlJ llAUT lU'Unl tAX SWlMINl O' YAWl ""I p' 1\111' 17013 600 Sherwood Odw Cadilll. PA ". . . ~- ~rllllld . It.'m! + . . .' -- ~ 1'" IDOl 10'4 South pitt 17013 PA 170 . 0.00 . --"- IDOl L OeM 4.... ~.......................... cw.-I o WlI.,.........--. Cl Cl Cl o T...........( c.-...., .............. o "-"- "- ....... Ie ....... II ....... ....... ,..,... .... ........ Cl c-.....__.........._, o ........,....... ..~................ .... ~ II ...... o 01'-1"'-................................. ___I 11102-<:.3(9) ,_.- llI_h" '-"' ..I......... D....... At-r. "-............, __ I*TJ'. I.........,.,.. .,-...... ,., ...-1. '-"- __ ~..... ...... c-.....,.. ~._..4>__ "'...-1. .....".,.... I Ir...u...................., J1 eo,......... .......... . ,... N..... A transfer lor no nr nAftj"", 1 1If"1"'lJIl ..-..4.......~t,.... ,.._ _ truat_ to . hMvt'fr.illl'V ,." ... "'.....U...qr ....... u.... ................I...........I....~.................... . .........,...-- - ;~ i-- - - ~_ \l . ISn IIYWII tOOl ............. .... ........ .. M\f......... 1:;').?3!<i.s- i19 rll'l1096 6. plaintiff avers as the grounds on which this action is based that the marriage of the parties is irretrievably broken, 7, There have been no prior actions for divo~ce or annulment of this marriage in Pennsylvania or in any other jurisdiction, 8, Both parties to this Action in Divorce are legally capable of managing their own concerns. 9. Defendant herein is not a member of the armed forces of the united states of America. 10, There were two children born to the parties, namely, Jennifer Marie Howell, born November 26, 1980, and Julie Ann Howell, born October 10, 1984. 11, plaintiff has been advised that counseling is available and that Plaintiff may have the right to request that the Court require the parties to participate in counseling, WHEREFORE, plaintiff demands judgment dissolving the marriage between the parties, ~~~~ wayne . Shade Attorney for Plaintiff WAYNU F. SHADU Annmcy .1 ....w SJWcltPOI1IfmSltttl earlillc,l'mnlylvanll I7I1Il -2- I verify that the statements made in this pleading are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C,S, S4904 relating to unsworn falsification to authorities, Date: April 5, 1995 l.1w~ ,-,.! WAYNE F, SHAIlE AUomt)' AI Law ~J Writ I'omfrd Slfttt C.,li.Ie.l'mn.,rvv:.ia 1101l ..J .., -:l ... 5 t ~~ ~. g ? y, , g '" ..:J .0 './'t' c,,' - ~ o - g- ~ ~ !fI ~ V> ~ 0') .- -rJl;.: ..,~ .'... 1'1'/.... .. .~~ F~' ~.' :' ,.,- ." .>. <0 ~ "<:< l~,' ~ ,:- ,.. ~.~;: _:".J 0"-' . . , . 5. I understand that I will not be divorced until a Divorce Decree is entered by the Court and that a copy of the Decree will be sent to me immediately after it is filed with the prothonotary. 6. I have been advised of the availability of marriage counseling and of my right to counseling and understand that I may request that the Court require that my spouse and I participate in counseling. 7. I understand that the Court maintains a list of marriage counselors in the Domestic Relations Office, which list is available to me upon request. 8. Being so advised, I do not request that the Court require that my spouse and I participate in counseling prior to a Divorce Decree's being handed down by the Court. 9. I verify that the statements made in this Affidavit are true and correct, I understand that false statements herein are made subject to the penalties of 18 Pa.C,S, Section 4904 relating to unsworn falsification to authorities. Date: June 9, 1997 . 2W~/ --- WAYII1! F. SHADE A......,...u.- 5l Well """m _ CarlWe,l'alaI1lvlllia 170ll . MARK E. HOWELL, Plaintiff , . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW , . , , v. NO, 95-1760 CIVIL TERM PATTIE A. HOWELL, Defendant : IN DIVORCE AFFIDAVIT OF CONSENT AND WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER ~3301(c) OF THE DIVORCE CODE COMMONWEALTH OF PENNSYLVANIA ) ) ss: COUNTY OF CUMBERLAND ) L A complaint in Divorce under section 3301(c) of the Divorce Code with Notice of Availability of Counseling was filed on April 6, 1995, and served on April 7, 1995, 2. The marriage of Plaintiff and Defendant is irretrievably broken and ninety (90) days have elapsed from the date of filing the Complaint. 3, I consent to the entry of a Final Decree of Divorce without notice, 4. I understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. b; C) ?= .:1 i$ ., ;~i~: 0 - ~<< - Ef"') 1~ ?-:: ,"- " <::-:~ ~f: ~., '1 r- ...:; \~ U-JL:. 1 '+1(5 ;...Jll: c..r; u:-~ :::> .1'1b... r... ~ ....; u. r- :3 0 0' <.) . . . P 214 ~41.-).), 1117 " ~ ReC!!!!UQr Certified Mall __ No Insuranco COVllitgl Provided .:.a"~'::n 00 not use for Intern.tional Mail (See Reversol C,.<I,I....! 1,-.' '>I'W,'I. 11,-,.".,. I.,' R"1>I',' t"'1 [....;..."'. f l'(~ en II,-lu'" Il.....,'pl';hn...'."l ~ '()"'t'I""'''~O<I'f'Llo:..;,..t.,.,,! GI Ill""'" ~""'''ljl '".1.;.,,,,'1 10 \\.."",,, 3 Dilt... .,,,,1 ,.,l(".,~,...,-, 0\,1.1.,.." .., .. TIIT^ll''''',I'J' o ...f....~ o CO l'l E C ... le t;)2/jC; POSlr",llk Of 0,11.' 1~~"iiI;r.~i:~~~:~%l~}~'~~~'':'''''.;t~:'i\'h7:>:':'>\';I.l,';:'t'f;;',!::~i~"..::fl~i;~L~;\;~ii:;':j;_~(~ '-11 .";;""'<."'_ ':,:^,:;'i:i,jy.;-,,_.:r~_;:'F'>~J'~~~~"~t-"" '7!';};&":~'I.].i;~"')';!' .2\~'~""W:"<WA~1:fF;~,..r:t.}1~ ~ ~.~:,.~_'f,'~'i'...~~""-" "X:"t~'f~'~'~:,:'T;S"it{.:-'~1t!,~;, '~I~AIIO.~~~Ull; Ur I i IrJiii.~~~.:~~~J~:"~A.;:~r~~~,i :~~'t'i~~~b ,':: jI~~~~';v:"""i..m.'''''~JI''''''''+.t.o:~ii,.~~~;'Y "lJ~'~c(dmaH'.Add~I,: t;il ~::~a~~:::i:=':::,::i'".::i~~~fu:-:i=, 2.)If R~D'~ ;1bffl: ti,,;ct.-...,..::,:v,,:..' ;;",". ":;' ":., "', ';'"-;/,, - Conault . for 'H. ~,~ ~ ~'''-~O' 1 ~:;'I'V3' Ar1Ic:lIAddrellldto: " . 4,.,."A,nld '.NumbI' :';C'j' r.'i '~~'~p"- .....:a.... "'......~_; P 214466417' l.~ '..~.I4!~' . ~, ~~- ~;; '5b:~tPanfret SOl3b:ee1: ,th:V-:::..J~ D '".u'ld ,,' ~s '~..........., PA, 17me.itIll1d DeOD ,.' I, r: ;". " D exPie.. Mill IX RltUm RK.'fpt for ',t :.: " 7. Dill 01 DllIvery , ;, '" ' {t, ';",> '.I3.q ',"'1 ?:f ~"Slg"'tull (Add......' 8, ::'I':T::.~r"" (Only If 'IClIlIIt,ldl *lJ.LGl'O:'__714 DOMESTIC RETURN RECEIPT . 1 1 i I 4 ~ co '- c_ , '- , ~~ .. ~~ oJ )=c. :=:: ~-)::;, -' "- '.~"'-j ,'~ C' C'\ "il) C" c. "),,. fi'!~ :!: ' ,jjE -', ') =-:, ~:..: 1.1. ~o :..:- () C-. U .,':?~ . C:lwp511"'lcrlpldalboweU,c. HQllCE YOU HAVE BEEN SUED IN COURT, If you wish to defend against the e1aims set forth in the following pages, you must take prompt action, You are warned that if you fall to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you by the Court. A judgment may also be entered against you for any other e1aim or relief requested in these papers by the Plaintiff, You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary at the Cumberland County Court House, Carlisle, Pennsylvania, 17013. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYERS FEES OR EXPENSES BEFORE A DECREE OF DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator, Fourth Floor Cumberland County Court House Carlisle, Pennsylvania 17013 (717) 240-6200 .:\.....5\ Uoicolpld&\bowcU,.. MARK E. HOWELL, . IN THE COURT OF COMMON PLEAS OF . . CUMBERLANDCOUNTY,PENNSYLVAN~ . Plalntllf . . . . vs. . CML AcrION - DIVORCE . . . . NO. 95-1760 CML TERM . PATriE A. HOWELL, . . Defendant IN DIVORCE ANSWER AND COUNTERCLAIM Defendant, Pattie A Howell, by her attorneys, FLOWER, MORGENnlAL, FLOWER & LINDSAY, in response to Plaintiffs Complaint In Divorce respectfully represents as follows: 1. Admitted. 2, Admitted. 3, Admitted. 4, Admitted, 5, Admitted, 6. Admitted. 7, Admitted, 8. Admitted, It is admitted that both parties to this action In divorce are legally competent, 9. Admitted. 10. Admitted. C:\wp.ll""-alpldi_,co 11, Admitted. By way of further answer, Defendant has also been advised of the availability of marriage counseling and has the right to request that the court require the parties to participate in marriage counselling, and she does not request counselling. WHEREFORE, if both parties file affidavits consenting to a divorce after ninety (90) days have elapsed from the filing of the Complaint, Defendant respectfully requests the Court to enter a Decree of Divorce, pursuant to ~3301(C) of the Divorce Code, COUNT I REQUEST FOR EQUITABLE DISTRIBUTION UNDER SECTION 3!l02 OF THE DIVORCE CODE 12, The prior paragraphs of the Answer are incorporated by reference thereto, 13, Plaintiff and Defendant have acquired property, both real and personal, during their marriage. 14. Plaintiff and Defendant have been unable to agree as to an equitable distribution of said property. WHEREFORE, Defendant respectfully requests this Honorable Court to enter an Order distributing all of the aforementioned property, real and personal, as the court may deem equitable and just, plus costs. COUNT II REQUEST FOR ALIMONY PENDENTE urn AND ALIMONY UNDER SECTIONS 3701 AND 3702 OF THE DIVORCE CODE 15. The prior paragraphs of this Complaint are Incorporated by reference thereto, 2 c:\wp5IIrotcr\j>Idt_cU,.. 16. Although employed, Plaintiff is unablc to sustain hcrsclC and hcr houschold during thc course of litigation, 17, Plaintiff requests the Court to cnter an Ordcr oC alimony pcndcntc IItc until final hearing, and thereupon to enter an Order oC Alimony In hcr Cavor, pursuant to 13701 and 13702 oC thc Divorce Code. 18. Plaintiff requires reasonablc support to adequately malntuln hcrsclC In accorduncc with the standards of living established during thc marrlagc. WHEREFORE, Plaintiff respectfully rcqucsts thc Court to cnter an award oC alimony pendente lite until final hearing, and thereupon to entcr an Ordcr oC Alimony In her Cavor, pursuant to 13701 and ~3702 of the Divorce Code, COUNT III REQUEST FOR COUNSEL FEES, COSTS AND EXPENSES UNDER SECTIONS 3104, 3313 AND 3701 OF THE DIVORCE CODE 19. The prior paragraphs oC this Answer are Incorporated by reCerence thercto. 20, Defendant has employed Roger M. Morgenthal, Esqulrc, oC thc law firm oC Flower, Morgenthal, Flower & Lindsay, to represent hcr In this matrimonial cause. 21. DeCendant is unable to pay the necessary counsel fecs, costs and cxpcnscs, and PlalntlCC is more than able to pay them, 22, Reserving the right to apply to thc Court Cor temporary counsel fces, costs and cxpenses, prior to the final hearing, thc DeCendant requcsts that after final hcarlng, thc Court ordcr PlalntlCC to pay Defendant's reasonable counsel Cees, costs and expenscs. 3 ,:\wp5I\qcrlpldllbowcll... WHEREFORE, Defendant respectfully requests that, pursuant to ~3104, ~3323 and ~3702 of the Divorce Code, the Court enter an Order directing Plaintiff to pay Defendant's reasonable counsel fees, costs and expenses, COUNT IV REQUEST FOR APPROVAL OF ANY SETTLEMENT AGREEMENT AND INCORPORATION THEREOF INTO DIVORCE DECREE UNDER SECI'IONS 3104 AND 3323 OF THE DIVORCE CODE 23, The prior paragraphs of this Answer are incorporated by reference thereto, 24, The public policy of the Commonwealth of Pennsylvania encourages parties to a marital dispute to negotiate a settlement of their differences. 25, While no settlement has been reached as of the date of the filing of this Answer, Defendant is and has always been willing to negotiate a fair and reasonable settlement of all matters and claims with Plaintiff. 26, To the extent that a written settlement agreement might be entered into between the parties prior to the time of hearing on this Answer, Defendant desires that such written agreement be approved by the Court and incorporated into any Divorce Decree which may be entered dissolving the marriage between the parties, WHEREFORE, If a written settlement agreement is reached prior to the time of hearing on this Answer, Defendant respectfully requests that pursuant to ~3104 and ~3323 of the Divorce Code, the Court approve and incorporate such agreement into the final Divorce Decree, 4 c:\wp$l\ruCcr\plda\laowcll.dly . . YEBIFICATION I, the undersigned, hereby verify that the statements made herein are true and correct, I understand that false statements herein are made subject to the penalties of 18 Pa. C.S, ~ 4904, relating to unsworn falsification to authorities, t; 1/" ../," It.} if) l~/{t(.t / ' fllt/t{I' PATIIE A HOr . ." ~ /. . t C Date: .:;. '[/1-, CERTIFICATE OF SERVICE AND now, this //-It.. day of ,4p~;j , 1995, I, Roger M, Morgenthal, Esquire, of the law firm of FLOWER, MORGENTHAL" FLOWER & UNDSA Y, Attorneys, hereby certify that I served the within Answer and Counterelalm to Complaint in Divorce this day by depositing same in the United States Mail, First Class, Postage Prepaid, in Carlisle, Pennsylvania, addressed to: Mark E, Howell, Plaintiff, by and through his attorney, Wayne F, Shade, Esquire 53 West Pomfret Street Carlisle, PA 17013 FLOWER, MORGENTI-IAL, FLOWER & UNDSA Y Attorneys for Defendant By ~ /01,,()/I/IJ Yl~ Roger M, MorgentH'a1, Esquire ID #: 17143 11 East High Street Carlisle, PA 17013 (717) 243-5513 il ~, "1J~ \,., 111 - ,. .. .. } -4- . g .." 0'> . ~>- ..t ~. ,~ .P to ~ " ~I u<;"J-,.'. _, J.o;:.,;'J !'-.':;: ~'.'-.. i.; f~ ;~;~ ~i " ,-i'~ . - '~J 4..; .<: "J.:,.oI..J.J ~. .:r: a.. t'.i3 o iE ..... .... ~ - - ::: ""'" ~ ~ ~ ~ rol rol ..:l E-l .... ... P< .... s:: ..:l '... ItS Z rolH ... 'tl O.z:U:> s:: s:: 2!jP<I>:H .... Ql ... au ItS .... o ~:> ~ Ql U:O<H ~llo Q E-lQ ..:l r..Z ..:l ~ 001 rol 0-1 0 ~ ..:l E-lUZ ~ I>: 0 tll OQH rol 0 O~E-l U . . tll U U I>: .z: UI .z:10 > . roll>: Ill:> rol ~ :I:~..:lo.H H E-ll1lH Q E-l ~ ~:> . ~ ZOHO:Z: HUUZH 110 i I rol ~ ~ H Q Z H gE-l Z H ~ iJ o U I') ... o -i 2 to-. < >- 0 t:i <_'" :c < 1=< ... ....Ul ~-Z zcl!!5<IlO:< ... Z !!: oJ I- > - _... Ul t:l:JO<:c~ llI:: U III ,... o~~~!:2!2 ::Slll::~~:Cz .J,I.I_oI-J,I.I llI::~::lI:Ulll. ~o~<;5~ ;;>...lo< "'Ul O~o. ...- ...l < ...l ~ ~ U . .. . 00.. . ..... .., o <) ~ '" .... ... t. ... .... ~ .......Jt.'" t.<....00 ~ 2; .:: ClZ~"" I>: l';l Ii >-< l1.I'"'W 3:1>:3:Ul g~g~ "':::e"':~ ClI>:Cl:i' UlWUlO l1.Il.-'WI>: ~O~< _I>::!U -'X-- ---- MARK E. HOWELL, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-1760 CIVIL TERM v. PATTIE A. HOWELL, Defendant IN DIVORCE PLAINTIFF'S ANSWER TO DEFENDANT'S PETITION FOR SPECIAL RELIEF 1. Admitted. 2. Admitted. 3. The statements in Paragraph 3 of Defendant's Petition, being conclusions of law, no response is required. Nevertheless, by way of further response, Plaintiff avers that the present case is indistinguishable from the decision in Solomon. 4. The averments of Paragraph 4 of Defendant's Petition are admitted with the exception of the averments that Donna M. Howell disclaimed or renounced her right to income under the Trust dated June 8, 1978, and that Plaintiff had an actual right to withdraw contributions to the Trust dated December 28, 1978. On the contrary, Plaintiff avers that Donna M. Howell never disclaimed or renounced in writing her right to receive the income from the Trust dated June 8, 1978. Therefore, Plaintiff never became an income beneficiary with a right to demand immediate distribution WAYNe F. SHADe AtIol'Dt)' alLAw S) Welt Pomfrd Stnd Carli.Ie, I'mm)otvania 1701l of the contributions to the Trust. Further on the contrary, W^YNB F. SH,wC AIIomty II Law 53 W~ Pomfrd SlIm Carwlc, Pmruytvanil 110ll Plaintiff avers that the provisions of section Ten of both Trusts were provisions which are commonly known as Crummy provisions. Those powers were placed in the Trust so that contributions to the Trust would be contributions of present interests so as to qualify them for the $10,000 gift tax annual exclusion. It was never intended that the Trust beneficiaries would actually exercise their withdrawal rights. If they had exercised their withdrawal rights, no further contributions would have been made by the Settlor to the Trusts. Plaintiff further avers that the reference to the withdrawal of $5,000 per year in Section Ten of the Trust dated December 28, 1978, was to establish the limitation of SS2041(b) (2) and 2514(e) of the Internal Revenue Code so as to avoid constituting the Crummy powers as a general power of appointment which would be taxable for federal gift tax purposes, Plaintiff further avers that the right to withdraw up to $5,000 per year under Section Ten of the Trust dated December 28, 1978, was not for each year but was only for years in which contributions were made to the Trust as property received by the Trustee, 5, The averments of Paragraph 5 of Defendant's Petition are denied and the responses of Paragraph 4 above are incorporated herein by reference as though fully set forth. 6. Admitted. -2- I verify that the statements made in the foregoing Answer are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pat C,S. 54904, relating to unsworn falsification to authorities. Date: June 19, 1996 Z!l:4dt/ WAYNE F. SHADE A_ ..lAw n Wut Puml'm Street CarUsIe. Pawylvlllil 17011 ~ r- .... N b /- Q M ::l~ :..);>.: ~~ - CJ~ - a.. ::1~ ....,. - ~~ tn :'-/1) N .:J~ :;:!: ffi. :::> lqU. , ~ u. ~ ::l 0 Q'\ U 0 11l~ ~~ l>: '" P.11l z~ 0 ~ ~ j i O~ S 01<. ~P. ~ ~z o .~ l>:S ~ ~ i ~ U~j::l . !ilf:: ::3 1<.~ > . 11l~ ~ ~ ~ ~ o I H ~II-I ~tl ~~1<. 0 U ~II-I P.~ ~ ~ ~ ~ ~UZ ~!l 0<11 H ~ 00 ="0 11l11l~ ~ < ~ ~ ~H\O~ 01:: I:: i..i-tl::l O~~""U ='" . QJ U Uo-Il>: <11 <11-I ~~~ U <10 '0-1 , QJ ~ ~> ~P. > ~~ ~~O\H H ItlH ~ ~ ~ H~U s> . :J~r:e Z HOZ HUUZH P. P.~11l , . . . . . MARK E. HOWELL, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. NO. 95- /7 '0 CIVIL TERM PATTIE A. HOWELL, Defendant IN DIVORCE PRAECIPE TO: Lawrence E, Welker, Prothonotary Please enter our appearance and acceptance of a certified copy of the Complaint in the above-captioned matter. Date: April 74<., 1995 FLOWER, MORGENTHAL, FLOWER & LINDSAY :..iJ, "'......" By:~m~~~ Roge M. Morgent: al, Esqu re Attorneys for Defendant